1. The applicant is the wife of non-applicant No. 1 (hereinafter referred to as the non-applicant). The non-applicant has filed a petition in the Court below seeking divorce from the applicant under the provisions of Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') on the ground of desertion and adultery. It is alleged that the applicant is leading adulterous life with non-applicant No. 2. This petition was filed on 18th July, 1975. The applicant appeared in the lower Court and before filing her written statement, made an application under Section 24 of the Act for maintenance pendente lite and for expenses of the litigation to be had from the non-applicant. In this application she alleged that she had no independent means of income for maintaining herself or to meet the expenses of the proceedings. She, therefore, claimed an amount of Rs.200/-a month by way of maintenance and Rs.300/- for meeting the expenses of the proceedings. The non-applicant resisted this application. He not only denied all the averments which the applicant had made in her said application but further contended that he himself had no means to maintain himself and he was fully dependent upon his father. He contended that whatever little he earned by working on the field of his father, was just sufficient to maintain himself and his children. According to him, the applicant was possessed of sufficient means to maintain herself as she was engaged in selling vegetables. The non-applicant further submitted that the applicant had herself deserted him and in spite of his best efforts she did not return to him. According to the non-applicant, the applicant was leading an adulterous life with non-applicant No. 2 and she had become pregnant because of her illicit relations with the latter. The non-applicant urged that the very fact that the applicant was in advanced stage of pregnancy and that she does not say that she had conceived from the non-applicant, would indicate that she was indulging in adultery and the charge made by the non-applicant to this effect in his petition was prim a facie true. According to the non-applicant, since the grant of maintenance and expenses of litigation was discretionary with the Court, it should not be exercised in a matter like this, as it would amount to putting a premium on the un-chastity of a woman living in adultery, During the course of the hearing of this application under Section 24 of the Act, the applicant examined herself while the non-applicant examined himself and his father. Besides this the applicant also put on record the extracts from revenue papers to show that the non-applicant owned and possessed some agricultural lands.
2. The learned trial Judge held that the applicant was neither entitled to the maintenance pendente lite nor the expenses of the proceedings as claimed by her. The learned trial Judge firstly held that since the applicant was not residing with the non-applicant from the month of April 1974, she could not have been pregnant from him and hence he could not exercise the discretion in her favour for granting the maintenance or expenses of the proceedings. Secondly the learned trial Judge, after considering the evidence on record, found that the non-applicant had no means to pay any maintenance or expenses to the applicant as he did not own an agricultural land more than one acre in area and he had to maintain himself and his three children. Having taken this view, the learned trial Judge rejected the said application of the applicant by his order passed on 19th February, 1977 and it is against this order that the present revision application has been filed.
3. Mr. C.W. Moharir, the learned counsel for the applicant, firstly submitted that the learned trial Judge should not have refused to grant the interim maintenance and the expenses of the litigation on the ground that the applicant was living an adulterous life or that she has deserted the non-applicant. According to Mr. Moharir, in doing so the learned trial Judge has not only prejudged the main issue in the petition but has also taken into consideration factors which cannot go while deciding a petition under Section 24 of the Act for interim maintenance and expenses of proceedings. According to Mr. Moharir, the only thing which a Court need consider for the purposes of the said Section is as to whether the party making an application under that section has or has nut independent income sufficient for her or his support and the necessary expenses of the proceedings. According to Mr. Moharir, the question whether the party so applying is guilty of any marital offence on which the main petition is based is extraneous for the consideration of grant of maintenance and expenses under Section 24 of the Act.
4. Secondly Mr. Moharir submitted that the finding of the learned trial Judge that the non-applicant was not possessed of sufficient means to pay the maintenance or expenses of proceedings is also not correct inasmuch as certain material evidence has not been considered by him in this connection. Mr. Moharir submitted that there was evidence on record to show that the non-applicant, besides owning certain agricultural land, as a member of the joint family consisting of himself and his father, also engaged himself in agricultural labour and had thus sufficient means not only to maintain himself and his children but could also spare considerable amount for the entire maintenance of the applicant and for the expenses o the proceedings required by her.
5. Lastly Mr. Moharir submitted that in any case if it was proved by the applicant that she had no independent income sufficient to meet the expenses of the proceedings, the Court was bound to direct the non-applicant to pay the expenses of the proceedings irrespective of the fact whether he had any income or not.
6. As against this Mr. Mahawadiwar, the learned counsel for the non-applicant, submitted that the question of ordering the other spouse to pay maintenance pendente lite and expenses of the proceedings to the other spouse under Section 24 of the Act is entirely within the discretion of the trial Court and if this discretion has been exercised by it on sound judicial principles, it cannot be interfered with in revision by this Court. Mr. Mahawadiwar submitted that the learned trial Judge, after considering the evidence on record, recorded the finding that the non-applicant was not in a position to pay the interim maintenance or expenses of proceedings to the applicant. According to Mr. Mahawadiwar, this finding of fact cannot be disturbed in revision, because if cannot be said that the finding has been given by the trial Court either without jurisdiction or in excess of the jurisdiction or that the Court has committed any illegality or material irregularity in exercising its jurisdiction. In other words, Mr. Mahawadiwar submitted that this Court cannot interfere in revision with the order passed by the learned trial Judge since all aspects of the case have been carefully considered by him.
7. In so far as the first contention of Mr. Moharir is concerned, I find much substance in it. Section 24 of the Act which provides for payment of maintenance pendente lite and expenses of proceedings, does not in terms provide that the spouse who makes the application under that section would not be entitled to a relief under it if he or she is guilty of any misconduct or any marital offence. Obviously this section is enacted with the object of providing maintenance to the spouse during pendency of the proceedings, who is not otherwise able to maintain himself or herself and has to depend upon the other spouse for that purpose. The same is the object for making provision for the expenses of the proceeding. The Legislature by enacting this provision appears to have taken note of the fact that during the pendency of the proceedings under the Act, say for divorce or judicial separation, the unity of the family would be disrupted and one of the two spouses would be thrown out from the protection and shelter of the other and would be rendered without any means not only to maintain herself or himself but also to meet the expenses necessary for the proceedings which he or she has to undergo. It is in order to obviate such a hardship that the Legislature thought it fit to make a provision in the Act for maintenance pendente lite and expenses of the proceedings from the spouse who has means to pay the same, if the other has no means. If that be the purpose of the Legislature in enacting this provision, it appears that the question whether the spouse claiming relief under this section is guilty of any marital misconduct or offence would not be relevant for the purpose of directing payment. It is presumed that the proceeding which is initiated under the Act would be for divorce, judicial separation or other matters based on certain allegations with regard to the misconduct or marital offences committed by the other spouse. Now if these allegations were to be gone into at the time of deciding as to whether the applicant, under Section 24 of the Act, is entitled to payment of maintenance or expenses, it would amount to prejudging the whole issue. It is needless to say that proceedings under Section 24 of the Act are intended to be summary in nature and it would not be appropriate at that stage to decide if the spouse making the application under that Section is or is not entitled to the said payment because of the misconduct or commission of marital offence by him or her. No doubt, it is entirely in the discretion of the Court to make or not to make an order under the said section. But that discretion has to be exercised by it on the requirements laid in that section itself and it that section does not prohibit the Court from directing payment of maintenance and expenses on the ground of misconduct, it would not be in keeping with the purpose of the section to refuse to do so merely in exercise of the discretion vested in the Court under that section. In my view, therefore, the learned trial Judge was not right in considering at this stage, when the applicant had not even filed her written statement and had not refuted the allegations made by the non-applicant in his main petition for divorce, if the applicant was pregnant from the non-applicant or from some other person It appears that the parties did not contemplate that this would enter into consideration of the question of directing payment of maintenance and expenses, and hence no evidence to that effect was led by either of them. However, in the absence of any positive evidence adduced by the parties in this connection the learned trial judge merely resorted to certain conjectures and surmises in arriving at the conclusion that the applicant had not conceived during the wedlock with the non-applicant. In this connection the learned trial Judge entirely lost sight of the presumption which was available to the applicant. In my view, therefore, the learned trial Judge was not right in recording the finding that the applicant was not pregnant from the non-applicant.
8. However, even if it is held that the said finding of the learned trial Judge was not called for and was not necessary for deciding the application under Section 24 of the Act, the order passed by the learned trial Judge cannot be set aside in this revision application because he has not rejected the application simply on the ground that the applicant has committed any misconduct and, is, therefore, disentitled to the payment of maintenance or expenses but has also further held that the non-applicant is not possessed of sufficient means to pay the same to the applicant. It cannot be said that this finding has been recorded by the learned trial Judge without jurisdiction or in excess of jurisdiction. Mr. Moharir submits that in recording this finding the learned trial Judge has committed material irregularity in not taking into consideration certain evidence. However, it should be noted that for the purpose of clause (c) of Section 115 of the Code of Civil Procedure, the material irregularity contemplated is not in arriving at a finding but in exercising jurisdiction. In other words, if the lower Court had jurisdiction to come to a conclusion or record a finding, the same cannot be interfered with in revision simply because some material irregularity has been committed in doing so unless it is shown that that irregularity has resulted in wrong exercise of jurisdiction by the Court.
9. Now in this case, as seen above, it is the contention of Mr. Moharir that the learned trial Judge has lost sight of certain evidence while recording the finding with regard to the means of the non-applicant. It is needless to say that on the language of Section 24, the Court has to consider the means of the spouse against whom the application is made. Tims the Court has jurisdiction to decide if the non-applicant had sufficient income for making such payment. Now, according to Mr. Moharir, the learned trial Judge has not considered the fact that the non-applicant owned certain land as coparcener of the joint family consisting of himself and his father and also engaged in agricultural labour and had thus ample means not only to support himself and his children but to pay the interim maintenance and expenses of proceedings to the applicant. Now perusal of the order passed by the learned trial Judge would show that he has considered the evidence which had been adduced before him in this connection and it is after that, that he has recorded the finding. It is not, therefore, possible to say that in arriving at the conclusion the learned trial Judge has committed any material irregularity which affects his jurisdiction, and hence it is not possible to interfere with that finding in this revision application. Hence even though the applicant has been successful in showing that the learned trial Judge has erred in taking into consideration the alleged misconduct of the applicant while deciding the application under Section 24, the applicant would not be entitled to the maintenance or payment of expenses because, according to the lower Court, the non-applicant has no sufficient income to pay the same.
10. As seen above, Mr. Moharir contended that the payment of expenses of the proceeding is not made dependent upon the income of the other spouse and in this connection Mr. Moharir lays great stress on the comma after the word 'proceeding' occurring for the second time in the said section. According to Mr. Moharir, the comma makes the words which follow after comma disjunctive from those which preceded it. In other words, according to Mr. Moharir, the words, 'having regard to the petitioner's own income and the income of the respondent it may seem to the court to be reasonable' govern the phrase, 'and monthly during the proceeding such sum as' and not the words, 'the expenses of the proceeding'. In short, therefore, according to Mr. Moharir, the comma after the word 'proceeding' makes the intention of the Legislature clear to the effect that the incomes of the petitioner and the respondent have to be considered only for the purpose of determining the amount of maintenance but not the amount of expenses of the proceeding, which, according to Mr. Moharir, has to be paid irrespective of the income or otherwise of the respondent. It is not possible to accept this construction put by Mr. Moharir on the language of S. 24. It is now well settled that punctual ions cannot be regarded as controlling factor and cannot be allowed to control the plain meaning of a text. (See Indian Cotton Co, v. Hari Poonjoo AIR 1937 Bom 39 and Bijibai v. Rama Manohar : AIR1969Bom103 . In this connection the rule propounded by Sutherland may be aptly reproduced mid it is as follows:--
'The better rule is that punctuation is a part of the Act and that it may be considered in the interpretation of the Act but may not be used to create doubt or to distort or defeat the intention of the Legislature. When the intent is uncertain, punctuation, if it affords some indication of the true intention, may be looked to as an aid. In such a case the punctuation may be disregarded, transposed, or the Act may he re-punctuated if the Act as originally punctuated does not reflect the true legislative purpose. An Act should be read as punctuated unless there is some reason to the contrary, and this is specially true where a statute has been repeatedly re-enacted with the same punctuation.' (See Statutory Construction by Sutherland, 3rd Ed. Vol. 2, Art. 4939 at pp. 447-448).
On the construction which is sought to be put by Mr. Moharir on the language of Section 24, it would mean that the Court can take into consideration the income of the petitioner and the respondent while determining the quantum of maintenance but cannot do so when it comes to ordering the payment of expenses of the proceeding. There docs not appear to be any rationale behind this distinction. If the Legislature intended that the spouse whose income is not sufficient to pay maintenance to the other should not be asked to pay the same, there is no reason why the Legislature should think that that spouse should be obliged to pay the expenses of the proceeding to the other spouse even if the former has no means to pay the same. In given cases the interpretation sought to be put by Mr. Moharir on this section would lead to an order being passed by the Court which would be incapable of being carried out or executed, because if the Court is under an obligation to order payment of expenses of proceeding without considering the income of the respondent, it (will) have to pass such an order and if the respondent has no income, it is obvious that this order will remain only on paper and would bain capable of being carried out. It is not possible to hold that while enacting the provision contained in Section 24 of the Act the Legislature did not take note of these consequences, that is, the Court passing an order which is incapable of being carried out. It is well-known that law does not compel a man to do that which he cannot possibly perform. This dictum is contained in the maxim 'lexnon cogit ad impossibilia'. Now if the words, 'having regard to the petitioner's own income and the income of the respondent' are held not to govern the words 'the expenses of the proceeding', the result would be that the respondent would be obliged to pay the expenses of the proceeding to the petitioner even if he or she has independent income sufficient for her or his support and the necessary expenses of the proceeding. This will be against the opening words of the section which says that the Court would order the payment of the maintenance and the expenses of the proceeding if it appears to it that the person applying has no independent income sufficient for her or his support and the necessary expenses of the proceeding. Obviously the Legislature could not have intended a contradiction in terms while enacting this provision. In view of these considerations, therefore, the interpretation which is sought to be put by Mr. Moharir on this section cannot be accepted and it has to be held that while ordering payment of the expenses of the proceeding the Court has to take into consideration the income of the respondent i.e. the spouse from whom such expenses are sought. Applying this principle to the facts of the present case, it is clear that the non-applicant not having sufficient income as held by the trial Court, would not be under any obligation to pay the expenses of the proceedings to the applicant.
11. In the result, therefore, I do not find any substance in any of the contentions raised by Mr. Moharir. The revision application therefore, fails and is dismissed. The rule is discharged. However, in the circumstances of the case there shall be no order as to costs.
12. Rule discharged.